Leaving the Right Gift to the Right Person

I meet several clients who, upon death, want to automatically give their daughters their jewelry and split their remaining property equally between their children. This is also the default position suggested by general practitioner attorneys who will draft a two page Will for their lifetime client, and avoid the consultation time needed to truly understand their client’s desires. My experience suggests that serious consideration must be given to distributing the correct amount of property, and the right type of property,  to each beneficiary.

Most people leave property first to their spouse, then to their children equally – they have equated equally loving their children with bequeathing them equal amounts of property. It goes without saying that even in “healthy” families this may not be the correct approach: One child may have a serious disability making it difficult for them to ever earn enough of an income to support themselves. Another may be financially compromised by student loans or a divorce. And yet another may have many children reaching the age where they will be attending a higher education institution.

My clients almost always leave jewelry and furs to a daughter or niece as a pre-residuary gift. This is usually not a problem, even if the sons / nephews receive no financial set-off for these gifts (though when there is a substantial amount of jewelry the subject of leaving additional funds to male heirs should at least be considered). Other items, such as collectables, should be addressed in the same fashion.

The “Jewelry Issue” may be a problem where only male heirs exist: Does a person anticipate male heirs to sell the jewelry? Is there an unharmonious relationship with a daughter-in-law or girlfriend of the male heir whom will ultimately receive the family heirloom jewelry from the male heir? This does not even address the fact that almost half of all marriages end in divorce, where the unhappy couple will fight over the smallest trinket (let alone a diamond tennis bracelet). The same can be said for collectables: Will a daughter receive a collectible automobile or stamp collection to which she has no interest, and ultimately give the item to a troublesome boyfriend or husband? Family heirlooms may have sentimental value that far exceeds its intrinsic value, and many prolonged disputes arise out of these objects. If a person does choose to work with a “generalist” attorney on their estate then they should approach this subject on their own initiative (since my experience has been they do not address these matters without being directed to do so).

Though less common, of far greater financial impact is leaving a family business to one (or several) children. Family businesses may comprise the majority of some people’s estate. Often one child is far more involved than the other, but the other child expects some type of financial set off. This can lead to complex gift, estate and income taxation issues, not to mention consternation between siblings regarding business valuation and operation. Because a business may constitute part of a parent’s legacy to their family and their community, and because it is almost impossible to come up with an “easy” solution, the parent should consider whether to give a little less financial set-off to the non-operator child, or do so over a longer period of time. This may seem unfair on the surface, but experience tells me that higher attorney fees, acrimonious future relations between siblings, and potential destruction of the business, will be the alternative.


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